2015 ORS
59.015¹

Definitions for Oregon Securities Law

As used in the Oregon Securities Law, unless the context otherwise requires:

(1) "Broker-dealer" means a person who engages, all or part of the time, in effecting transactions in securities for the account of others or for the person’s own account. "Broker-dealer" does not include:

(B) A financial holding company or a bank holding company, as defined in ORS 706.008 (Additional definitions for Bank Act), holding an institution described in subparagraph (A) of this paragraph; a savings and loan holding company as defined in section 408 of the National Housing Act, 12 U.S.C. section 1730a, holding an association described in subparagraph (A) of this paragraph; the subsidiaries and affiliates of the financial holding company, bank holding company or savings and loan holding company; or subsidiaries and affiliates of institutions described in subparagraph (A) of this paragraph, if the appropriate statutory regulatory authority is exercising control over, or is regulating or supervising the person in the sale of securities in accord with the purposes of the Oregon Securities Law;

(c) A person who has no place of business in this state effecting transactions in this state exclusively with broker-dealers;

(2) "Control" means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a person, whether through the ownership of voting securities, by contract, or otherwise.

(3) "Director" means the Director of the Department of Consumer and Business Services.

(4) "Federal covered investment adviser" means a person who is registered as an investment adviser pursuant to section 203 of the Investment Advisers Act of 1940, as amended.

(5) "Federal covered security" means any security that is a covered security under section 18 of the Securities Act of 1933, as amended, and for which such Act provides that the director may require filing of a notice and payment of a fee.

(6) "Fraud," "deceit" and "defraud" are not limited to common-law deceit.

(7) "Guaranteed" means guaranteed as to payment of principal, interest or dividends.

(8)(a) "Investment adviser representative" means any partner, officer, director or person occupying a similar status or performing a similar function, or other individual, except clerical or ministerial personnel, who is employed by or associated with:

(A) A state investment adviser that is licensed or required to be licensed in this state and who does any of the following:

(iii) Determines which recommendation or advice regarding securities should be given;

(iv) Solicits, offers or negotiates for the sale of or sells investment advisory services; or

(v) Supervises employees acting under this subparagraph; or

(B) A federal covered investment adviser, subject to the limitations of section 203A of the Investment Advisers Act of 1940, as amended, as the director may designate by rule or order.

(b) "Investment adviser representative" does not include a person designated by rule or order of the director.

(9) "Issuer" means a person who issues, proposes to issue or has issued a security and includes an issuer to be formed. With respect to certificates of deposit, voting-trust certificates or collateral-trust certificates, or with respect to certificates of interest or shares in an unincorporated investment trust not having a board of directors or persons performing similar functions or of the fixed, restricted management or unit type, the "issuer" is the person or persons performing the acts and assuming the duties of depositor or manager pursuant to the provisions of the trust or other instrument or agreement under which the security is issued.

(10) "License" means a license as provided under the Oregon Securities Law.

(13) "Offer" or "offer to sell" includes every attempt or offer to dispose of, or solicitation of an offer to buy, a security or interest in a security for value. Every sale or offer of a warrant or right to purchase or subscribe to another security of the same or another issuer, as well as every sale or offer of a security which gives the holder a present or future right or privilege to convert into another security of the same or another issuer, is considered to include an offer of the other security.

(14) "Person" includes an individual, a joint venture, a partnership, a cooperative, a limited liability company, an association, a joint stock company, a corporation, a trust, an unincorporated organization or a government or political subdivision of a government.

(17)(a) "Sale" or "sell" includes every contract of sale of, contract to sell, or disposition of, a security or interest in a security for value. Any security given or delivered with, or as a bonus on account of, a purchase of securities or any other thing shall constitute a part of the subject of the purchase and shall have been offered and sold for value. A gift of assessable stock by or for any issuer or promoter shall constitute a sale.

(B) A bona fide security dividend, whether the corporation distributing the dividend is the issuer of the security or not, if nothing of value is given by the recipients for the dividend other than payments in connection with the elimination of fractional shares; or

(C) An act incident to a judicially approved reorganization in which a security is issued in exchange for one or more outstanding securities, claims or property interests, or partly in such exchange and partly for cash.

(18)(a) "Salesperson" means a person, other than a broker-dealer, who represents or purports to represent a broker-dealer, issuer or owner of securities in effecting or attempting to effect in any manner transactions in securities.

(C) A person who represents an issuer in effecting sales with existing partners or directors of the issuer, if no commission or other remuneration is paid or given directly or indirectly for soliciting any person in this state;

(D) An employee of an institution or organization described in subsection (1)(b) of this section to the extent the employee is not a dual employee of the institution and a broker-dealer;

(E) A person effecting transactions in this state limited to those transactions described in section 15(h)(2) and (3) of the Securities Exchange Act of 1934, as amended; or

(F) A person designated by rule or order by the director.

(c) A person who is a partner, director or officer of a broker-dealer, issuer or owner of securities, or a person who occupies a similar status or performing similar functions, is a "salesperson" only if the person otherwise comes within this definition.

(19)(a) "Security" means a note, stock, treasury stock, bond, debenture, evidence of indebtedness, certificate of interest or participation in a pension plan or profit-sharing agreement, collateral-trust certificate, preorganization certificate or subscription, transferable share, investment contract, voting-trust certificate, variable annuity, certificate of deposit for a security, certificate of interest or participation in an oil, gas, or mining title or lease or in payments out of production under such title or lease, real estate paper sold by a broker-dealer, mortgage banker, mortgage broker or a person described in subsection (1)(b) of this section to persons other than persons enumerated in ORS 59.035 (Transactions exempt from registration) (4), or, in general, any interest or instrument commonly known as a "security," or any certificate of interest or participation in, temporary or interim certificates for, receipt for, guarantee of, or warrant or right to subscribe to or purchase any of the foregoing.

(b) "Security" does not include:

(A) An insurance or endowment policy or annuity contract, other than a variable annuity contract, under which an insurance company promises to pay a fixed or variable sum of money either in a lump sum or periodically for life or some other specified period;

(A) Engages all or part of the time of the person, in this state, in the business of advising others, either directly or by mail or through publication or writing, as to the value of securities or as to the advisability of investing in, purchasing or selling securities;

(B) Engages all or part of the time of the person, in this state, in the business of managing an investment or trading account in securities for other persons; or

(C) Issues or promulgates, as part of a regular business in this state, analyses or reports concerning securities.

(b) "State investment adviser" does not include:

(A) An investment adviser representative;

(B) An institution or organization described in subsection (1)(b) of this section;

(C) A licensed broker-dealer whose performance of investment advisory services is solely incidental to the conduct of business as a broker-dealer and who receives no special compensation for such services;

(D) A salesperson licensed to a broker-dealer whose performance of investment advisory services is solely incidental to that person’s activities as a salesperson and who receives no special compensation for such services;

(E) A publisher of or contributor to a bona fide newspaper, newsmagazine, investment manual or service, or business or financial publication of general, regular and paid circulation;

(F) A person whose only clients are federal covered investment advisers, state investment advisers, broker-dealers, mortgage bankers, mortgage brokers, banks, savings institutions or trust companies, insurance companies, investment companies as defined in the Investment Company Act of 1940, as amended, pension or profit-sharing trusts, or other financial institutions or institutional buyers, whether acting for themselves or as trustees;

(G) A duly licensed or registered lawyer, engineer or accountant whose performance of investment advisory services is solely incidental to the practice of the profession;

(J) A person, advising others, that has no place of business in this state and during the preceding 12-month period has had fewer than six clients, other than those persons included in subparagraph (F) of this paragraph, who are residents of this state; or

Notes of Decisions

Sale of "Dare to be Great" contracts, consisting of series of tapes and group sessions in addi­tion to franchise under which buyer could sell contracts, is "invest­ment contract" covered by Oregon Blue Sky Law. Hurst v. Dare to be Great, Inc., 474 F2d 483 (1973)

Under the "risk capital" test, sales of memberships in a travel club did not constitute "invest­ment contracts," and were therefore not subject to registra­tion require­ments, since initial capital used to initiate club opera­tions was not provided by memberships sold in Oregon. Jet Set Travel Club v. Corp. Commr., 21 Or App 362, 535 P2d 109 (1975)

Sales and leaseback of an apart­ment complex was an invest­ment contract within the meaning of paragraph (13) (a). Bergquist v. Intl. Realty, Ltd., 272 Or 416, 537 P2d 553 (1975)

The sale of a "frac­tional interest" in a racehorse is an "invest­ment contract" within the meaning of this sec­tion when the purchaser expects to derive a profit to be created solely through the efforts of other per­sons. Marshall v. Harris, 276 Or 447, 555 P2d 756 (1976)

Transac­tion whereby plaintiff paid $6,000 to defendant and took back promissory note in defendant's corpora­tion, with agree­ment that plaintiff would have op­tion to convert note to 50% interest in new corpora­tion plus 25% interest in defendant's corpora­tion, constituted "op­tion for the sale of ... a security." Foelker v. Kwake, 279 Or 379, 568 P2d 1369 (1977)

Transac­tions in invest­ment scheme which involved Treasury bill "straddles" in which assets of scheme promoter and investors were intermingled, were invest­ment contracts and therefore securities under this sec­tion. Black v. Corpora­tion Division, 54 Or App 432, 634 P2d 1383 (1981)

Where investors in land sale scheme did not anticipate playing any significant role in dividing land, recruiting other investors, rezoning or resubdividing the land or obtaining purchasers for resale of prop­erty and they executed agree­ment conferring general manage­ment powers on defendant, participatory undivided interests sold by defendant were "invest­ment contracts." State v. Jacobs, 55 Or App 406, 637 P2d 1377 (1981), Sup Ct review denied

Where plaintiffs purchased gold and silver coins from defendant, coins could be picked up on demand and plaintiffs understood that any profit would depend upon market and not on efforts of defendant, there was neither common enterprise nor expecta­tion of profit to be made through manage­ment and control of others and so there was no invest­ment contract within the meaning of this sec­tion. Jost v. Locke, 65 Or App 704, 673 P2d 545 (1983), Sup Ct review denied

Facts existed in record for jury to find that transac­tion in which plaintiff agreed to loan capital for produc­tion of film where loan would be repaid or, alternatively, plaintiff would have op­tion to take equity in film was invest­ment contract under this sec­tion. Computer Concepts Inc. v. Brandt, 310 Or 706, 801 P2d 800 (1990), Sup Ct review denied

Agree­ment in which shares of stock in newly formed company are appor­tioned among parties for value given is sale of securities. Towery v. Lucas, 128 Or App 555, 876 P2d 814 (1994)

Buyer of securities is not under constructive notice of recorded lien on company assets. Towery v. Lucas, 128 Or App 555, 876 P2d 814 (1994)

Law Review Cita­tions

68 OLR 890 (1989)

Chapter 59

Notes of Decisions

Public policy does not prohibit nonculpable corporate directors held liable under this chapter from seeking indemnifica­tion from per­sons actually responsible for the wrongful issuance of unregistered securities. Collins v. Fitzwa­ter, 277 Or 401, 560 P2d 1074 (1977)

3 OregonLaws.org assembles these lists by analyzing references between Sections. Each
listed item refers back to the current Section in its own text. The result reveals
relationships in the code that may not have otherwise been apparent.